FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04JV-15-718]
HONORABLE THOMAS SMITH, JUDGE
Bowers Lee, Arkansas Public Defender Commission, for
Goff, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor children.
BRANDON J. HARRISON, JUDGE.
Lessley appeals the termination of her parental rights to her
children. Lessley argues that the circuit court erred in (1)
granting a Rule 60 motion for reconsideration filed by the
Department of Human Services (DHS) after the termination
order was entered, (2) refusing to allow Lessley to elicit
evidence regarding the applicability of the Indian Child
Welfare Act (the ICWA), and (3) finding that termination was
in the children's best interest because there was
insufficient evidence of adoptability. We affirm.
November 2015, DHS petitioned for emergency custody of
seven-year-old S.H., five-year-old H.A., and four-year-old
R.A. The accompanying affidavit stated that the
children's mother, Lessley, had been arrested for
delivery of methamphetamine earlier that week and had left
the children in the care of her roommate, who took the
children to the Siloam Springs Police Department when she
could no longer care for them. The affidavit noted the
family's history with DHS dating back to 2012, including
a true finding of environmental neglect in November 2012 and
a protective-services case that had been open from December
2012 to June 2014.
court granted emergency custody of the children to DHS that
same day and the next day found probable cause to continue
custody with DHS. The probable-cause order noted that the
ICWA applied and identified a Cherokee tribal affiliation. On
30 November 2015, DHS received a letter from the Cherokee
Nation; the letter informed DHS that the information it had
received regarding the mother and the children was incomplete
and that it was "impossible to validate or invalidate
this claim without more complete information." The
Cherokee Nation requested Lessley's middle name, maiden
name, and date of birth.
court adjudicated the children dependent-neglected due to
neglect and parental unfitness on 12 January 2016. The
adjudication order included a finding that the ICWA did not
apply to the children in this case. The order also noted that
Lessley had not been present for the hearing and had failed
to attend the staffing.
letter from the Cherokee Nation dated 7 January 2016 stated
that none of the names provided, which consisted of the
children's names, Lessley's name, and the two
putative fathers' names, were current enrolled members of
the tribe. The letter concluded that the children did not
meet the definition of an "Indian child" in
relation to the Cherokee Nation as stated in the ICWA, so the
Cherokee Nation did not have legal standing to intervene.
Lessley's date of birth had still not been provided,
however, and the letter explained that
[b]ecause 'ENROLLED TRIBAL MEMBER' and 'ELIGIBLE
FOR ENROLLMENT' are different, a conclusive finding of
'eligible for enrollment' requires the full names, to
include maiden names, and dates of birth for the direct
biological lineage linking the child to an enrolled member of
the tribe. It is impossible for Cherokee Nation to confirm or
deny a claim of 'eligible for enrollment' without
orders entered in February and April 2016 noted that Lessley
was not in compliance with the case plan and court orders.
The permanency-planning order, entered in July 2016, again
noted that Lessley was not in compliance and changed the goal
of the case to adoption. DHS petitioned to terminate parental
rights in November 2016, citing the "failure to remedy,
" "subsequent factors, " and "aggravated
circumstances" grounds for termination.
court convened the termination hearing on 31 January 2017.
Lessley testified that she was currently incarcerated in the
Benton County jail for failure to appear and that she was on
probation after pleading no contest to delivery of
methamphetamine. She admitted that she had spent "quite
a bit" of time in jail during the pendency of the case,
maybe six or nine months in total. She explained that she did
not currently have a home, a car, or a driver's license,
but upon her release from jail, she could live with her
"adoptive granny." She also stated that she had not
worked since 2015, and she admitted that she had not
completed counseling or parenting classes. She denied she had
a substance-abuse problem, but she also acknowledged testing
positive for methamphetamine more than once throughout the
case, with the last positive test occurring less than thirty
cross-examination, Lessley testified that she "should
be" a registered member of the Cherokee tribe because
"that's what [her] father told [her] before he
passed away." She said that she did not have a
registration card but that her dad and stepmom were
"dealing with that" and would send it to her. After
Lessley's testimony, DHS clarified that it had given
notice to the Cherokee Nation, but because Lessley had not
been available to provide sufficient information, the
Cherokee Nation had been unable to make ...